Exhibit 2.20
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SERVICES AGREEMENT
BY AND AMONG
CABLETRON SYSTEMS, INC.
AND
ENTERASYS NETWORKS, INC.
SERVICES AGREEMENT
This Services Agreement is effective as of August 28, 2000 (the "Effective
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Date"), by and among Cabletron Systems, Inc., a Delaware corporation ("CSI") and
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Enterasys Networks, Inc., a Delaware corporation ("Enterasys").
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WHEREAS CSI currently owns all of the issued and outstanding capital stock
of Enterasys;
WHEREAS CSI and Enterasys determined that it would be appropriate and
desirable, in accordance with the Transformation Agreement and the Asset
Contribution Agreement for CSI to contribute and transfer to Enterasys, and for
Enterasys to receive and assume, directly or indirectly, certain assets and
liabilities held by CSI and its affiliates and associated with the Enterasys
Business and to consummate the other transactions contemplated thereby (the
"Transformation");
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WHEREAS, in connection with the Transformation, CSI announced that it
planned to conduct an initial public offering for Enterasys followed by a
distribution of the remaining shares of Enterasys to CSI's stockholders,
although CSI is not obligated to complete any such transactions and will only
implement any such transactions if the Board of Directors of CSI continues to
believe that it is in the best interests of CSI, CSI's stockholders and
Enterasys; and
WHEREAS CSI has been providing certain services to Enterasys or its
predecessor division since March 1, 2000 consistent with the provisions
described in this Agreement, and CSI and Enterasys now wish, by executing this
Agreement, to formalize the terms and conditions under which CSI will continue
to provide services to Enterasys at least until Enterasys ceases to be a
majority owned subsidiary of CSI.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein made, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall have
the following meanings:
1.1. ADDITIONAL SERVICE(S). "Additional Service(s)" shall have the meaning set
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forth in Section 3.5.
1.2. AGREEMENT. "Agreement" shall have the meaning set forth in Article 2.
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1.3. ANCILLARY AGREEMENT(S). "Ancillary Agreement(s)" shall have the meaning
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set forth in the Transformation Agreement.
1.4. APRISMA. "Aprisma" shall mean Aprisma Management Technologies, Inc., a
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Delaware corporation.
1.5. ASSET CONTRIBUTION AGREEMENT. "Asset Contribution Agreement" shall mean
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the Asset Contribution Agreement, dated as of June 3, 2000, between CSI
and Enterasys.
1.6. ASSIGNMENT. "Assignment" shall have the meaning set forth in Section 13.5.
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1.7. BASIC SERVICE(S). "Basic Service(s)" shall be the Services designated as
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such in the Service Schedule.
1.8. CSI. "CSI" shall have the meaning set forth in the Preamble.
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1.9. DISPUTE. "Dispute" shall have the meaning set forth in Section 12.1.
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1.10. EFFECTIVE DATE. "Effective Date" shall have the meaning set forth in the
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Preamble.
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1.11. ENTERASYS. "Enterasys" shall have the meaning set forth in the Preamble.
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1.12. ENTERASYS BUSINESS. "Enterasys Business" shall have the meaning set forth
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in the Transformation Agreement.
1.13. ENTERASYS. "Enterasys" shall have the meaning set forth in the Preamble.
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1.14. EXPIRATION DATE. "Expiration Date" shall have the meaning set forth in
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Section 6.1.
1.15. FORCE MAJEURE. "Force Majeure" shall mean any act of God, any accident,
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explosion, fire, storm, earthquake, flood, or any other circumstance or
event beyond the reasonable control of the party relying upon such
circumstance or event.
1.16. GNTS. "GNTS" shall mean GlobalNetwork Technology Services, Inc., a
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Delaware corporation.
1.17. IMPRACTICABILITY. "Impracticability" shall have the meaning set forth in
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Section 3.3.
1.18. IMPRACTICABLE. "Impracticable" shall have the meaning set forth in
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Section 3.3.
1.19. INTERCOMPANY ACCOUNT. "Intercompany Account" shall mean the intercompany
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account created for Enterasys pursuant to the Asset Contribution
Agreement, which shall be managed by CSI pursuant to this Agreement.
1.20. NEWCO. "Newco" shall mean each of Aprisma, Enterasys, GNTS, and
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Riverstone.
1.21. RIVERSTONE. "Riverstone" shall mean Riverstone Networks, Inc., a Delaware
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corporation.
1.22. SERVICE(S). "Service(s)" shall have the meaning set forth in Section 3.1.
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1.23. SERVICE SCHEDULE. "Service Schedule" shall have the meaning set forth in
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Article 2.
1.24. SUBCONTRACTOR. "Subcontractor" shall mean any individual, partnership,
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corporation, firm, association, unincorporated organization, joint
venture, trust or other entity engaged by CSI to perform services
hereunder on behalf of CSI.
1.25. TRANSFORMATION. "Transformation " shall have the meaning set forth in the
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Recitals.
1.26. TRANSFORMATION AGREEMENT. "Transformation Agreement" shall mean the
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Transformation Agreement, dated as of June 3, 2000, by and among CSI and
the Newcos.
ARTICLE 2
SERVICE SCHEDULE
2.1. This Agreement will govern individual services to be provided by CSI to
Enterasys, the details of which are set forth in the Service Schedule
attached to this Agreement, as amended from time to time by the parties
hereto (the "Service Schedule"). Obligations under this Agreement
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regarding a particular Service shall be effective upon the addition of
such Service to the Service Schedule, subject to the effectiveness of
this Agreement. This Agreement together with the Service Schedule shall
be defined as the "Agreement."
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ARTICLE 3
SERVICES
3.1. SERVICES GENERALLY. Except as otherwise provided herein, for the term
determined pursuant to Article 6 hereof, CSI shall provide to Enterasys
the service(s) described in the Service Schedule attached hereto (the
"Services").
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3.2. SERVICE BOUNDARIES. Except as provided in the Service Schedule: (i) CSI
shall be required to provide a Service to Enterasys only to the extent
and only at the locations such Services were being provided by CSI to
Enterasys immediately prior to the Effective Date; and (ii) each Service
will be available to Enterasys only for purposes of conducting the
business of Enterasys substantially in the manner it was conducted prior
to the Effective Date.
3.3. IMPRACTICABILITY. CSI shall not be required to provide any Service to the
extent the performance of such Service becomes impracticable
("Impracticable") as a result of a cause or causes outside the reasonable
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control of CSI (including Force Majeure), or to the extent the
performance of such Services would require CSI to violate any applicable
laws, rules or regulations or would result in the breach of any software
license or other applicable contract. The inability of CSI to perform a
Service because such performance is Impracticable shall be referred to
herein as "Impracticability."
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3.4. ADDITIONAL RESOURCES. Except as provided in the Service Schedule, in
providing the Services, CSI shall not be obligated to: (i) hire, lease or
contract for any additional employees; (ii) maintain the employment of
any specific employee; or (iii) purchase, lease or license any additional
equipment or software.
3.5. ADDITIONAL SERVICES. From time to time during the term of this Agreement,
Enterasys may request that CSI provide additional services to it in
accordance with the terms of this Agreement (the "Additional Services").
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In such event, CSI and Enterasys shall amend the Service Schedule to
provide for the addition of such Additional Services pursuant to Article
2.
ARTICLE 4
COMPENSATION
4.1. CHARGES FOR SERVICES. Enterasys shall pay CSI the charges, if any, set
forth on the Service Schedule as adjusted, from time to time, in
accordance with the processes and procedures established under Section
4.3 and Section 4.4 hereof. If CSI reasonably determines that the actual
charge for a Service is likely to exceed materially, as determined in
good faith by CSI in its sole discretion, the charge set forth on the
Service Schedule for a particular Service, it shall provide Enterasys
with notice of the anticipated excess and such additional supporting
documentation as Enterasys may reasonably request. Thereupon, unless it
shall be agreed among the parties hereto following good faith discussion
that a different charge is appropriate, the increased charge shall for
all purposes be treated as the charge owed in respect of the Service
pursuant to the Service Schedule, and the Service Schedule shall be
amended accordingly. No change to a charge for a particular Service shall
justify CSI in not providing, or Enterasys in not paying for, such
Service or any other Service under this Agreement.
4.2. PAYMENT TERMS.
(a) INVOICES. CSI shall periodically provide invoices to Enterasys
detailing all charges for Services provided to Enterasys pursuant to
this Agreement.
(b) PAYMENT. While CSI is managing Enterasys' Intercompany Account, the
charges set forth in invoices shall be posted by CSI to the
Intercompany Account of Enterasys. If CSI is no longer managing
Enterasys' Intercompany Account, or if the Intercompany Account has
no balance, any invoice received by Enterasys shall be payable no
later than forty-five (45) days after receipt. Late payments shall
bear interest at the lesser of twelve percent (12%) per annum and
the maximum rate allowed by law.
4.3. CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall jointly develop a
process and procedure for conducting internal audits and making
adjustments to charges as a result of the movement of employees and
functions between parties, the discovery of errors or omissions in
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charges, as well as a true-up of amounts owed. In no event shall such
processes and procedures extend beyond two (2) years after completion of
a Service.
4.4. PRICING ADJUSTMENTS. In the event of a tax audit adjustment relating to
the pricing of any Services provided pursuant to this Agreement in which
it is determined by a taxing authority of competent jurisdiction that any
charges did not result in an arm's-length payment, then the parties,
including any CSI Subcontractor providing Services hereunder, may agree
to make corresponding adjustments to the charges in question for such
period to the extent necessary to achieve arm's-length pricing. Any
adjustment made pursuant to this Section 4.4 at any time during the term
of this Agreement or after termination of this Agreement and shall be
reflected in the parties' records, and the resulting underpayment or
overpayment shall create, respectively, an obligation to be paid in the
manner specified in Section 4.2, or shall create a credit against amounts
owed under this Agreement.
ARTICLE 5
GENERAL OBLIGATIONS; STANDARD OF CARE
5.1. PERFORMANCE BY CSI. Subject to Section 3.4 and any other terms and
conditions of this Agreement, CSI shall maintain sufficient resources to
perform its obligations hereunder. CSI shall use reasonable efforts to
provide Services in accordance with the policies, procedures and
practices in effect before the Effective Date and shall exercise the same
care and skill as it exercises in performing similar services for itself.
5.2. DISCLAIMER OF WARRANTIES. CSI MAKES NO WARRANTIES WITH RESPECT TO THE
SERVICES PROVIDED BY IT HEREUNDER.
5.3. PERFORMANCE BY ENTERASYS. Enterasys shall use reasonable efforts, in
connection with receiving Services, to follow the policies, procedures
and practices in effect before the Effective Date including the provision
of information and documentation sufficient for CSI to perform the
Services as they were performed before the Effective Date and the making
available, as reasonably requested by CSI, of sufficient resources and
timely decisions, approvals and acceptances in order that CSI may
accomplish its obligations hereunder in a timely manner.
5.4. TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties acknowledge the
transitional nature of the Services and that CSI may make changes from
time to time in the manner of performing the Services if CSI furnishes to
Enterasys reasonable notice regarding such changes.
5.5. RESPONSIBILITY FOR ERRORS; DELAYS. CSI's sole responsibility to
Enterasys:
(a) for errors or omissions in Services, shall be to furnish correct
information, payment and/or adjustment in the Services, at no
additional cost or expense to Enterasys; provided, Enterasys must
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promptly advise CSI of any such error or omission of which it
becomes aware after having used reasonable efforts to detect any
such errors or omissions in accordance with the standard of care set
forth in Section 5.3; and
(b) for failure to deliver any Service because of Impracticability,
shall be to use reasonable efforts, subject to Section 3.4, to make
the Services available and/or to resume performing the Services as
promptly as reasonably practicable.
5.6. GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith efforts
to cooperate with each other in all matters relating to the provision and
receipt of Services. Such cooperation shall include exchanging
information, performing true-ups and adjustments, and obtaining all third
party consents, licenses, sublicenses or approvals necessary to permit
each party to perform its obligations hereunder (including by way of
example, not by way of limitation, rights to use third party software
needed for the performance of Services). The costs of obtaining such
third party consents, licenses, sublicenses or approvals in connection
with the performance of
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Services for Enterasys shall be borne by Enterasys. Each party will
maintain, in accordance with its standard document retention procedures,
documentation supporting the information relevant to the charges
contained in the Service Schedule and cooperate with each other party in
making such information available as needed in the event of a tax audit,
whether in the United States or any other country.
5.7. ALTERNATIVES. If CSI reasonably believes that it is unable to provide any
Service because of a failure to obtain necessary consents, licenses,
sublicenses or approvals pursuant to Section 5.6 or because of
Impracticability, the parties shall cooperate to determine the best
alternative approach. Until such alternative approach is found or the
problem otherwise resolved to the satisfaction of the parties, CSI shall
use reasonable efforts, subject to Section 3.3 and Section 3.4, to
continue providing the Service.
ARTICLE 6
TERM AND TERMINATION
6.1. TERM. The term of this Agreement shall commence on the Effective Date and
shall remain in effect until two (2) years after the Effective Date (the
"Expiration Date"), unless earlier terminated under this Article 6. The
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term of this Agreement may extended by CSI and Enterasys in writing
either in whole or with respect to one or more of the Services. The
parties shall be deemed to have extended this Agreement with respect to
a specific Service if the Service Schedule specifies a completion date
beyond the aforementioned Expiration Date for such Service. The parties
may agree on an expiration date respecting a specific Service earlier
than the Expiration Date by specifying such date on the Service
Schedule. Each Service shall be provided up to and including the date
set forth in the applicable Service Schedule, subject to earlier
termination as provided herein.
6.2. TERMINATION.
(a) Enterasys may terminate this Agreement, either with respect to all
or with respect to any one or more of the Services provided to
Enterasys hereunder, for any reason or for no reason, at any time
upon giving prior written notice to CSI at least a full fiscal
quarter prior to such termination, provided that (i) Enterasys must
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indemnify CSI in full against any costs imposed by third parties as
a result of such termination; and (ii) Enterasys shall not have the
right to terminate a Basic Service before Enterasys ceases to be a
majority owned subsidiary of CSI.
(b) CSI may terminate this Agreement, either with respect to all or
with respect to any one or more of the Services provided to
Enterasys hereunder, for any reason or for no reason, at any time
upon giving prior written notice to Enterasys at least sixty (60)
days prior to such termination.
(c) Notwithstanding the foregoing, either CSI or Enterasys may
terminate this Agreement with respect to a specific Service if the
other party materially breaches a material provision with regard to
that particular Service and does not cure such breach (or does not
take reasonable steps required under the circumstances to cure such
breach going forward) within sixty (60) days after being given
notice of the breach.
6.3. SURVIVAL. The obligations of the parties under this Agreement shall
survive termination thereof to the extent necessary to carry out the
purposes of this Agreement, including without limitation payment
obligations under Article 4 and indemnification obligations under
Article 10. Notwithstanding the foregoing, in the event of any
termination with respect to one or more, but less than all Services,
this Agreement shall continue in full force and effect with respect to
all Services not terminated hereby.
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6.4. POST-TERMINATION SERVICES. Following a termination of this Agreement
with respect to a particular Service, corporate administrative services
of the kind provided under the Service Schedule may continue to be
provided to Enterasys on an as-requested basis by Enterasys or as
required in the event it is not practicable for Enterasys to provide
such services or Enterasys is otherwise unable to identify another
source to provide such services (as would be the case with
administration of employee benefit plans and insurance programs
sponsored by CSI and in which Enterasys' employees participate). In the
event such services are provided by CSI to Enterasys, Enterasys shall be
charged by CSI a fee equal to the market rate for comparable services
charged by third-party vendors. CSI shall periodically provide invoices
to Enterasys detailing any such charges. If, at such time, CSI is still
managing an Intercompany Account for Enterasys, the charges set forth in
invoices shall be posted by CSI to the Intercompany Account of
Enterasys. If CSI is no longer managing Enterasys' Intercompany Account,
any invoice received by Enterasys shall be payable no later than thirty
(30) days after receipt. The obligations of Enterasys set forth in this
Section 6.4 shall survive the termination of this Agreement.
ARTICLE 7
RELATIONSHIP BETWEEN THE PARTIES
7.1. INDEPENDENT CONTRACTORS. The relationship between the parties
established under this Agreement is that of independent contractors and
no party is an employee, agent, partner, or joint venturer of or with
another. CSI will be solely responsible for any employment-related
taxes, insurance premiums or other employment benefits respecting its
personnel's performance of Services under this Agreement. Enterasys
agrees to grant CSI personnel access to sites, systems and information
(subject to the provisions of confidentiality in Article 9 below) as
necessary for CSI to perform its obligations hereunder.
7.2. ENTERASYS DIRECTORS AND OFFICERS. Nothing contained herein will be
construed to relieve the directors or officers of Enterasys from the
performance of their respective duties or to limit the exercise of their
powers in accordance with the By-laws of Enterasys or in accordance with
any applicable statute or regulation.
ARTICLE 8
SUBCONTRACTORS
CSI may cause one or more Newcos, or may engage other Subcontractors, to perform
all or any portion of CSI's duties under this Agreement, provided that any such
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Subcontractor agrees in writing to be bound by confidentiality obligations at
least as protective as the terms of Article 9 regarding confidentiality below,
and provided further that CSI remains responsible for the performance of any
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such Subcontractor. Any reference in this Agreement to performance of Services
by CSI (including but not limited to the general obligations set forth in
Article 3, standards of care relating to performance set forth in Article 5, and
limitations on liability and indemnification by Enterasys set forth in Article
10) shall incorporate performance of Services by Subcontractors on behalf of
CSI.
ARTICLE 9
CONFIDENTIALITY
Each party to this Agreement agrees to hold, and to use all commercially
reasonable efforts to cause its employees, representatives and agents to hold,
in confidence all confidential or proprietary information regarding any other
party, its operations and business obtained through the provision of the
Services in accordance with the confidentiality provisions set forth in the
Transformation Agreement.
ARTICLE 10
LIABILITY AND INDEMNIFICATION
10.1. CSI shall not be liable to Enterasys for direct, consequential or
incidental damages, including, without limitation, loss of profits or
damage to or loss of use of any property arising out of or
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relating to the provision of the Services pursuant to this Agreement,
except to the extent of CSI's willful misconduct or gross negligence.
10.2. Enterasys hereby agrees to indemnify and hold CSI (and its directors,
officers, employees and representatives) harmless from and against any
and all claims, losses, damages, costs, expenses, causes of action or
judgments of any kind or character (including those arising from, related
to or caused directly or indirectly, by the sole, joint, concurrent or
comparative negligence of such indemnified parties) including any
interest, penalty, reasonable attorneys' fees, investigation expenses
with respect to asserted claims (whether or not resulting in any
liability) and other costs and expenses incurred in connection therewith
or the defense thereof, attributable to or arising out of any claims by,
or liabilities or obligations to, any third party arising out of
(including another Newco), in connection with or resulting from the
Services or other activities performed by CSI hereunder for Enterasys,
except to the extent resulting from the gross negligence or willful
misconduct of CSI or Subcontractors engaged by CSI (which shall not be
deemed to exist if such action is taken at Enterasys' direction).
ARTICLE 11
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of its
obligations under this Agreement, other than the obligations of Enterasys to
make payments to CSI pursuant to Article 4 hereof for services rendered, if such
failure or delay is caused by Force Majeure.
ARTICLE 12
DISPUTE RESOLUTION
12.1. DISPUTES. If a dispute, controversy or claim ("Dispute") arises between
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CSI and Enterasys relating to the interpretation or performance of this
Agreement, or the grounds for termination hereof, such Dispute shall be
resolved according to the dispute resolution mechanism set forth in the
Transformation Agreement.
12.2. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, during the resolution of any Dispute pursuant to the provisions
of this Article 12 and the Transformation Agreement, the parties will
continue to provide service and honor all other commitments under this
Agreement and each Ancillary Agreement with respect to all matters not
subject to such Dispute.
ARTICLE 13
MISCELLANEOUS
13.1. ENTIRE AGREEMENT. This Agreement, the Transformation Agreement and the
other Ancillary Agreements and the Exhibits and Schedules referenced or
attached hereto and thereto constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and shall
supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof
and thereof.
13.2. GOVERNING LAW. This Agreement shall be construed in accordance with and
all Disputes hereunder shall be governed by the laws of the State of New
Hampshire, excluding its conflict of law rules. The courts of the State
of New Hampshire or of the United States District Court for the state of
New Hampshire shall have venue over all Disputes between the parties that
are permitted to be brought in a court of law pursuant to Article 12
above.
13.3. DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any
Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Any capitalized term used in
any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning assigned to such term in this Agreement. When a reference is made
in this Agreement to an Article
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or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated.
13.4. NOTICES. Notices, offers, requests, or other communications required or
permitted to be given by the parties pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the
following addresses:
If to CSI: Cabletron Systems, Inc.
00 Xxxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and Chief Financial Officer
Telecopier No.: 000-000-0000
with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Fine
Telecopier No.: 000-000-0000
If to Enterasys: Enterasys Networks, Inc.
00 Xxxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Fine
Telecopier No.: 000-000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing as provided herein. Any
notice involving non-performance, termination, or renewal shall be sent
by hand delivery, recognized overnight courier or, within the United
States, may also be sent via certified mail, return receipt requested.
All other notices may also be sent by fax, confirmed by first class mail.
All notices shall be deemed to have been given and received on the
earlier of actual delivery or three (3) days from the date of postmark.
13.5. NONASSIGNABILITY.
(a) Except as specifically permitted under Article 8 above, CSI may
not, directly or indirectly assign, transfer or delegate its duties
under this Agreement, in whole or in part, whether by operation of
law or otherwise (an "Assignment"), without the prior written
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consent of Enterasys, and any attempted Assignment without such
prior written consent shall be voidable at the sole option of
Enterasys.
(b) Enterasys may not effect an Assignment without the prior written
consent of CSI, and any attempted Assignment without such prior
written consent shall be voidable at the sole option of CSI.
(c) Notwithstanding the foregoing, CSI (or its permitted successive
assignees or transferees hereunder) may assign or transfer this
Agreement as a whole without consent to an entity that succeeds to
all or substantially all of its business or assets.
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(d) Without limiting the foregoing, this Agreement will be binding upon
and inure to the benefit of the parties and their permitted
successors and assigns .
13.6. SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated is not affected in any
manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
13.7. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any agreement herein, nor shall any single
or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
13.8. AMENDMENT. Subject to Section 10 of the Transformation Agreement, no
change or amendment will be made to this Agreement except by an
instrument in writing signed on behalf of each of the parties to the
Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives.
CABLETRON SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxx
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Title: President, Chairman & CEO
ENTERASYS NETWORKS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: President
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SERVICE SCHEDULE (This Schedule may be amended from time to time by the parties
hereto for the addition of Additional Services)
All Services start on the Effective Date of the Services Agreement, to which
this Service Schedule is attached, and end two (2) years after the Effective
date, unless otherwise indicated below. Basic Services shall not be terminable
by Enterasys before Enterasys ceases to be a majority owned subsidiary of CSI.
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Basic Fixed Cost
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Service Category Service Description Service? Start Date End Date Per Quarter?
---------------- ------------------- ------- ---------- -------- -----------
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1. HUMAN Insurance Coverage and Participation in HR Plans and X
RESOURCES ----------------------------------------------------
Programs
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. Liability, property, casualty, and other normal
business insurance coverage.
. Participation by Company employees in product,
worker safety and environmental programs.
Participation by Company employees in the
following employee benefit plans maintained by
CSI: (i) medical insurance; (ii) dental
insurance; (iii) short and long-term disability
insurance; (iv) life insurance; (v) flexible
spending; and (vi) 401(k) plan (the "Plans").
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____________________________________________________________________________________________________________________________________
2. REAL ESTATE Occupancy Costs
AND ---------------
FACILITIES
SERVICES. . The right to occupy certain office space, the
right to use the common areas in the facilities in
which such office space is located, including
without limitation, circulation corridors,
stairwells, lobbies and restrooms and external
common areas, sidewalks, and parking areas and
cafeteria facilities.
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Service Category Cost Per Quarter (if fixed) or
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Cost Methodology for Charges ($)
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1. HUMAN See Annex A
RESOURCES -------
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2. REAL ESTATE See Annex A
AND -------
FACILITIES
SERVICES.
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Building Services
----------------- X 361,941
. Reception.
. Space planning.
. Security.
. Maintenance group (building and grounds
maintenance, janitorial services).
. Cafeteria services
. Mail / Copy Center
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Annex A
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Human Resources: Insurance Coverage and Participation in HR Plans and Programs
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The charges for insurance coverage and participation by the Company employees in
product, worker safety and environmental programs and in benefit plans
maintained by CSI shall be calculated on a quarterly basis as follows:
The charges for any insurance coverage, or participation in benefit plans and
programs shall be equal to (i) the costs incurred by CSI for such coverage,
plans and programs (excluding costs related to benefits administration),
multiplied by (ii) a fraction that is equal to (A) the salaries, in the
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aggregate, of all participating employees of the Company divided by (B) the
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salaries, in the aggregate, of all participating employees of CSI and its
affiliates (including the Company), each as of the beginning of the relevant
quarterly period, provided, however, that CSI shall have the right to allocate
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certain costs directly to individual employees of the Company where CSI, in its
sole discretion, deems it appropriate.
Real Estate and Facilities Services: Occupancy Costs
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The charges relating to facilities that are either owned or leased by CSI and
occupied in whole or in part by the Company shall be calculated on a quarterly
basis as follows:
For any facility owned by CSI, the charges shall be equal to (i) any costs
associated with such facility, determined in accordance with GAAP, including
without limitation building financing payments, depreciation charges, and
utility charges, but excluding costs relating to "building services," as set
forth separately in Schedule I to the Services Agreement, multiplied by (ii) the
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percentage of such facility that is occupied by the Company, as reasonably
determined by CSI in its sole discretion.
For any facility rented by CSI, the charges shall be equal to (i) (A) the rent
paid by CSI for such facility plus (B) the cost of utilities for such facility
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multiplied by (ii) the percentage of such facility that is occupied by the
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Company, as reasonably determined by CSI in its sole discretion.
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